Fairness, Fitness, and Firefighting

Human rights legislation, particularly the Charter of Rights and Freedoms, has become all-pervasive in Canada, pushing into every corner of the everyday lives of ordinary Canadians. The influence of this legislation is not good for Canada or its citizens.

Here's a recent example of how human rights legislation is being used to force an equality of outcome in the name of a corrosive and unjust social vision not shared by most Canadians.

The Supreme Court ruled against the B.C. government when it fired a female forest firefighter who, after four attempts, was unable to pass a critical portion of her physical test. The court said the test discriminated against females because they don't have the same aerobic capacity as males. It required that she be re-instated, regardless of what life-threatening dangers this might create in a forest fire environment, and regardless of the effect on the morale of the team she would be working with.

The court threw out the physical test because it was discriminatory. But that's in the very nature and purpose of tests—to discriminate one from another.

Few short people in the NBA

What the court has done is start with the result it wanted to achieve (equal representation of males and females) and rule that the tests be forced to yield those results. Note that the tests were designed by a group of specialists specifically to take women's physical capabilities into account, while keeping in mind the inherent demands of the job.

By making this ruling, the court throws all tests into question. Tests are based on the assumption that there is some objective measurement of what you're testing for that is connected to the job's inner nature. However, the court says, in effect, "Forget about the thing you're testing. Start with what you want to achieve and work back from there."

A further problem with this ruling is that it demonstrates that the idea of "culpability" is fast disappearing from human rights thinking. The court can rule against you even though you didn't actually intend to unfairly discriminate against someone, to harm that person.

Apparently, all the court has to show is that someone has been offended in some way based on a number of prohibited grounds (sex, sexual orientation, creed, race, etc.). The firefighter test had no intention to be unfair in its discrimination. But that didn't matter. Someone didn't pass it, a condition which is presumptively labelled "adverse effect discrimination."

The court's judgement declares that "a prima facie case of adverse effect discrimination [was found] by showing that the aerobic standard has a disproportionally negative effect on women as a group." Tests had shown that twice as many men got through the test as did women (70 per cent to 35 per cent).

Who lays down the law that because a test has a disproportionate effect on one "group" versus another group, that there is something unfairly discriminatory going on? There are very few short people in the NBA. Is this evidence of systemic discrimination? Or is it a matter of the inherent requirements of the game itself?

Forcing a social agenda

The firefighter case is but one example of the ascendency of human rights legislation, and its being used to force a social agenda. Why is this happening?

For one thing, we are experiencing the effects of the breakup of the religious consensus we once enjoyed. The Supreme Court shares in the secularization of society. Regardless of the religious beliefs of the individual justices, the court as a whole clearly feels itself unable or unwilling to use religious reasoning or language when dealing with some of the deep issues it faces.

Participating fully in society's secularizing trend and cut off from our religious roots, the justices find they no longer have the language and symbols to even conceptualize, let alone answer, the fundamental questions that mold our life together, except the thin gruel of human rights language. No language means no understanding.

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Second, our infatuation with technology and its ability to fix things, coupled with a faith that science has all the answers, encourages us to put our trust in social engineering, or what political scientist Rainer Knopff calls "social technology." Thinking that social technology works like other technologies, social technocrats think they can force human behaviour into socially acceptable forms.

Technology's attraction is that it appears neutral, not requiring that its users ask uncomfortable questions about meaning or purpose. In the same way, social technology has evaded any discussion of what constitutes the good society.

Third, in the absence of even a rough consensus on life's meaning, we are adopting a thoroughly secular idea of society, unconnected to and unrestrained by a transcendent moral order. In such an environment, as Knopff has pointed out, the "will to power" becomes primary in the pursuit of a social ideal. Asking to what end and for what purpose is off the point; exercising the will is the point.

The "purpose" becomes what our powerful elites and social gatekeepers want it to be, and that is Equality, not of opportunity or fairness of process, but of outcome, of result. They want to make sure that our society's billions of social interactions yield a common, predictable outcome, namely, equality.

In some of its manifestations, it's a chillingly cerebral, labyrinthine, numerically-determined "equality," not easily apprehended by the "common man." In this case, it's an equality that says that if women (or some other protected group) comprise 50 per cent of the population, they should also be represented in all jobs in the same ratio.

Fourth, the law, particularly the Charter, has become the vehicle for forcing this social equality. Questions of deep social concern are now being answered by social activists and their lawyers who know how to follow rules and precedent, but who often lack wisdom. Letting them loose to make new law (as our Supremes are frequently charged with doing) is like giving a lighter to a child in a gasoline-vapour-filled room.

Fifth, human rights have been severed from responsibilities. They are now understood simply as human values. Unhinged from any grounding reality, they proliferate. For who can argue with, let alone deny, people what they value?

What are human rights, properly understood? The human person is the image bearer of God on earth, as well as being God's manager of the earth. Human beings are loved by God and called to love and serve God in response.

We can do this only when we are given social elbow-room to fulfil our responsibilities in this regard. Our rights mark out this elbow-room. Rights cannot be divorced from responsibilities. And the order is important, too. First come our responsibilities as creatures; then come our rights to enable us to fulfill those responsibilities.

Sixth, for too many, the state (the legislature, the courts, etc.) is seen not so much as a caring, always hovering, nanny state but more as a saviour state rescuing the downtrodden by constructing a new reality into which it forces everyone under its care. The saviour state has a messianic vision of the way life should be, an abstract, constructed vision unconnected to reality at major points.

In Christian terms, however, the state's job is to carve out enough elbow room or "social space" for individuals, communities, and associations to contribute meaningfully to human life, in other words, so that they can respond to God's call in ways appropriate to them.

The state should also look after public justice. It must prevent one sphere's riding roughshod over another, as the business sphere is now doing in education and government.

Thus, the state has a conserving and protecting role to play. It doesn't create rights. It merely acknowledges them.

Counteract homogenizing thinking

What should our response look like?

We must counteract the force of homogenizing thinking, it's good to remind ourselves that God has created a richly diverse universe with creatures, both living and extinct, beyond numbering. God loves the pinnacle of his creation, men and women, and calls them to respond to that love in ways that reflect their gifted distinctiveness.

Against this thinking is arrayed the courts whose decisions involving human rights legislation favour equality of outcomes at the expense of our created diversity and our need for liberty to express that diversity. The movement of our society is toward making everyone appear the same. Heads that stick up must be quickly knocked down.

Fundamental (as distinct from superficial) diversity is squashed in the name of uniformity. But uniformity is the death of freedom.

It is not a simple task to balance the claims of the community and the diversity of persons. Faced with the complexity, the courts seem to have opted for the easy route: enforced uniformity, according to some numerically-calculated norm.

This is a denial of God's good creation. We must speak against what is happening, not because we don't like change and want things the way they were (which may not have been all that great).

Rather, we protest because this represents a narrowing, a limiting, colourless mocking of the rich diversity of what God has given us in creation. It represents a bloodless, dusty, earth-licking, unhinged legalism that will destroy us.